gavel.jpgAttorneys for a Berkeley law professor will go before a federal appeals court in San Francisco on Monday to seek dismissal of a lawsuit in which a former military prisoner claims that legal memos written by the professor justified his alleged torture while being held in a Navy brig.

John Yoo, a professor at the University of California at Berkeley, worked for the Office of Legal Counsel in the Bush administration from 2001 to 2003 and helped to write legal memos on the treatment of people classified as enemy combatants.

Jose Padilla, an American citizen later convicted of aiding overseas terrorism, claims in a civil rights lawsuit filed in federal court in San Francisco that Yoo’s memos justified brutal treatment amounting to torture while Padilla was held as an enemy combatant in a Navy brig in South Carolina from 2002 to 2005.

Padilla’s lawyers claim in court filings that he was subjected to “vicious interrogations, sensory deprivation and total isolation–in short, to torture.”

Yoo is asking the 9th U.S. Circuit Court of Appeals to overturn a decision in which U.S. District Judge Jeffrey White refused last year to dismiss the lawsuit. Without ruling on whether Padilla’s rights were in fact violated, White said the lawsuit could go to trial because Padilla had alleged sufficient facts to argue that Yoo had “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”

Yoo’s lawyers say the lawsuit should be dismissed because his advice to President Bush was protected by the president’s constitutional power to conduct wars.

The professor’s lead attorney, Miguel Estrada, wrote in a brief submitted to the court that allowing the lawsuit would “stifle the candor required of the president’s lawyers on complicated and sensitive matters of national security” and “deter qualified lawyers from entering public service for fear of facing lawsuits.”

In addition, Yoo’s attorneys claim he was not personally responsible for the decision to detain Padilla as an enemy combatant or for his alleged treatment during that confinement.

A three-judge panel of the appeals court will hear arguments on the case at its courthouse at Seventh and Mission streets Monday morning and is expected to issue a written decision at a later date.

Padilla, 49, was arrested in Chicago in 2002 on suspicion of participating in a radioactive “dirty bomb” plot. After being held in a New York jail as a material witness for about a month, he was declared an enemy combatant by President Bush and moved to the Navy brig, where he was held without in solitary confinement without being charged with any crime for three and one-half years.

Padilla was never charged in the alleged bomb plot, but was eventually indicted in 2005 on separate charges of aiding overseas terrorism in the 1990s and was transferred to civilian custody in early 2006. He was convicted of three terrorism-related charges in federal court in Miami in 2007, was sentenced to 17 years in prison, and is appealing that conviction.

Padilla’s lawsuit claims he was subjected to illegal and unconstitutional abuse in the brig, including extreme sleep and sensory deprivation, exposure to extreme temperatures, denial of adequate medical care, denial of the right to practice his Muslim religion and brutal interrogation methods such as being forced to sit and stand in painful stress positions, prolonged shackling and threats of being cut with a knife or killed.
His lawyers’ brief to the appeals court alleges, “Padilla suffered these conditions as part of a systematic program of extra-judicial detention and extreme interrogation designed by Yoo.”

The attorneys wrote, “The need to deter the military imprisonment and torture of Americans in America strongly counsels providing Padilla with a remedy for the serious, systematic and willful constitutional violations.”

The lawsuit seeks financial compensation of $1 and a court declaration that the alleged mistreatment was unconstitutional and illegal. Padilla’s mother, Estela Lebron, is also a plaintiff in the case.

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